C2005/1559, Transcript of Proceedings [2005] AIRCTrans 668 (16 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10802

SENIOR DEPUTY PRESIDENT DUNCAN

C2005/1559

s.113 - application to vary an award

APPLICATION BY AMEC ENGINEERING PTY LTD
(C2005/1559)
Electrical Engineering and Contracting Industries (Northern Territory) Award 2002

C2005/1684

s.113 - application to vary an award

APPLICATION BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
(C2005/1684)
Electrical Engineering and Contracting Industries (Northern Territory) Award 2002

SYDNEY

11.06AM, MONDAY, 7 MARCH 2005

Continued from 11/02/05

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN21

THE SENIOR DEPUTY PRESIDENT: Could I have appearances, please.

PN22

MR I DOUGLAS Yes, your Honour, I've already been granted leave to appear in matter 1159 for AMEC Engineering Pty Ltd and I would seek leave to appear in the other matter for the same company.

PN23

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Douglas.

PN24

MR C FLATT: Thank your Honour. I appear on behalf of the CEPU. Unfortunately, I was not available for the hearing of this matter, matter 1559, last week but I was aware of what was happening in that matter and continue my appearance in the matter 1684.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Flatt. You've got no objection to Mr Douglas's appearance? Thank you, Mr Douglas.

PN26

MR DOUGLAS: I think we're in agreement. I've provided your associate with a draft order that my friend has seen. What it effectively seeks to do, your Honour, is to have the order that your Honour made in the general matter, that is the matter of 1684, so far as that order concerns termination of employment and redundancy, to operate with respect to AMEC Engineering in the Northern Territory as from 2 May.

PN27

THE SENIOR DEPUPTY PRESIDENT: 2 March?

PN28

MR DOUGLAS: 2 March, your Honour. Remember in the general matter, that the order there, I think by consent was that it operate in the pay period beginning on or after 3 March and I understand the reason for that because they were related to the safety net.

PN29

THE SENIOR DEPUTY PRESIDENT: Correct, yes.

PN30

MR DOUGLAS: Your Honour, the transcript of the proceedings before Hampton DP in Adelaide the other day were briefly set out in factual situation. I am not sure if your Honour has a copy of the transcript.

PN31

THE SENIOR DEPUTY PRESIDENT: I don't have a copy of that but I can deal with that.

PN32

MR DOUGLAS: Maybe if I could just summarise in this way. AMEC Engineering Pty Ltd has sold part of its business to Mayfield Engineering Pty Ltd which is a new subsidiary, wholly owned subsidiary of Latents Construction Pty Ltd. The contract was entered into on 24 February of this year and completed on 2 March. The company AMEC Engineering is obliged to Mayfield under contract to make employment offers to every one of its AMEC employees on terms and conditions substantially similar, on balance, to the terms and conditions presently in place and as well, your Honour, protecting the services of those employees, so that that service is regarded as service with Mayfield. Those words, your Honour, are precisely the words that are used in the employment offers that have been made, are taken precisely from the transmission of business provision of the new redundancy standard clause that was subject to a Full Bench ruling.

PN33

Your Honour, could I hand up to you a document that sets out the employee numbers. The company have provided my friend with this and this slightly amends the figures that I gave the Commission the other day. It amends or makes them more accurate.

PN34

THE SENIOR DEPUTY PRESIDENT: I see.

PN35

MR DOUGLAS: Effectively AMEC Engineering, the business that's been sold involves two divisions. Firstly, its construction division and it has presently employees at the locations set out on page 1 of that document. In addition to that, the sale also involves the technical services division and the employees in that division are set out on the second page of the document. All up, there are 423 employees and offers have been made in the construction division area to 234 of the total of 241, in accordance with the contract. The few that haven't received offers are a handful of employees, wages employees at Telfer, who will remain employees of AMEC Engineering until the completion of that project and three casual employees who haven't worked since December of last year.

PN36

In relation to the technical services division, your Honour, offers have gone out to 171 of the 182 employees. Those that haven't received offers are casuals that haven't been engaged since December of last year. Your Honour, I would simply ask that you make an order by consent, in accordance with the draft order that I've handed up. I think it's fairly clear on its face, identifies sufficiently the variation that you've already given effect to and it makes it clear that that variation, so far as it concerns redundancy and termination of employment, will operate in relation to AMEC as from 2 March.

PN37

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Douglas. Mr Flatt?

PN38

MR FLATT: Your Honour, the CEPU was provided with some paperwork in relation to this application last week. As a result of that paperwork an application to vary the award and an order for substitution of service and a notice of listing in relation to matter 1559 - the CEPU did not receive that paperwork and applications until the day before the hearing and that's why the CEPU sent an urgent letter. I'm not too sure if you have seen a copy of that in relation to this file, to Deputy President Hampton in this matter.

PN39

THE SENIOR DEPUTY PRESIDENT: I haven't seen it, but that's as may be.

PN40

MR FLATT: They're just outlines, the CEPU's request for this matter to be adjourned while we were able to examine the application. Since that time we've had some discussions with the legal representatives, representing AMEC, the current amended draft order was put forward as a position. That was a different application and the original application which we had some concern about. There was proposed to have set a new schedule to the award and inserted test case provisions and eliminating AMEC and its successors' rights and application to the current clause 12 and 13. We had some concerns with that and since that time we've seen this amended draft order which we believe is a better application and a better position from the company in relation to achieving this application.

PN41

We consent to this current application, subject to the employees receiving substantially similar employment, as suggested in this copy that I've just received today.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, which I think I'll mark, Mr Flatt, because you're relying on it, as did Mr Douglas, so the lists of employees and their movements in this arrangement, I'll mark exhibit AMEC1.

EXHIBIT #AMEC1 LIST OF WORKPLACE AND EMPLOYEES NUMBERS

PN43

MR FLATT: Your Honour, in relation to exhibit 1, I am in discussions currently with our South Australian and Northern Territory offices and we consent to this application, pending that the employees transfer is satisfactory and we believe that all entitlements will be transferred across satisfactorily and all dates of original service will be satisfactory and in light of that and those undertakings that that is occurring, we will be consenting to this amended draft order.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Flatt. It is clear that the application should be successful. I am satisfied that any requirements have been met and indeed the - I suppose it's retrospectivity that's sought is a mere day. Compared to some that you've extracted from me, Mr Douglas, that's a mere bagatelle.

PN45

The application will be granted in the terms of the draft order which I mark for purposes of record exhibit AMEC2.

EXHIBIT #AMEC2 DRAFT ORDER

PN46

THE SENIOR DEPUTY PRESIDENT: It will come into operation from 2 March 2005 and will continue in force for a period of 3 months. I adjourn these matters indefinitely.

<ADJOURNED INDEFINITELY [11.15AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMEC1 LIST OF WORKPLACE AND EMPLOYEES NUMBERS PN42
EXHIBIT #AMEC2 DRAFT ORDER PN45